Judges give green light to green groups' resort appeal

May 21, 2013

TUPPER LAKE - The groups challenging the Adirondack Club and Resort are claiming a small victory with the most recent decision from state Supreme Court judges, which might give them more time and developers more delay.

Protect the Adirondacks, the Sierra Club and three landowners will be allowed to appeal a March decision that barred the group from performing broad discovery practices to research their lawsuit over the state Adirondack Park Agency's approval of the development.

Protect and its associates have accused APA members of engaging in inappropriate communications with resort developers and the governor's office, and they requested to gain access to more documents and to depose anyone who may have been involved in or had knowledge of the alleged communications.

In March, Judge Richard M. Platkin, acting justice of the state Supreme Court in the Third Judicial District, rejected the request, calling it too broad.

The plaintiffs moved to appeal that decision, and Presiding Justice Karen K. Peters granted them permission in an order dated last Thursday.

A panel of appellate judges also ruled that the appeal and the proceeding can be done together, rather than at different times.

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In April, ACR attorney Bob Sweeney made a motion asking the court to expedite scheduling in the case, limiting the time Protect and its affiliates have to file briefs and other paperwork.

Sweeney wrote in the motion that before the start of the lawsuit, Preserve Associates and the other private-party respondents in the case had already been working on the development for more than seven years "and made a very substantial investment in the Adirondack Club and Resort project.

"They are the only parties 'at risk' in this Article 78 proceeding," Sweeney wrote. "Every day of delay is prejudicial and extremely damaging to that investment and the future of the ACR project. The delay also stalls the badly needed investment and economic development in the Tupper Lake community."

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THE ADIRONDACK CLUB AND RESORT, proposed by a Pennsylvania-based investment group called Preserve Associates, would overhaul the Big Tupper Ski Area in Tupper Lake and build out the land around it with about 650 luxury housing units and various amenities including a spa, a marina and an equestrian center. The project received permits from the state Adirondack Park Agency on Jan. 20, 2012, after eight years of negotiating, reworking the application and an extensive adjudicatory hearing.

In March 2012, two environmental groups and three nearby landowners filed a lawsuit to challenge the APA's decision. That suit is working its way through state courts.

The project must also obtain a number of other approvals, including from the state departments of Environmental Conservation and Health and the U.S. Army Corps of Engineers. The project has approval to begin the first phase from the local town-village planning board.

That motion was rejected by the panel of appellate judges. The case will remain on the court's normal schedule of briefings.

In a press release, Protect and the Sierra Club leadership wrote that they anticipate the court case will be done around the end of the year.

Protect and the Sierra Club called the victories important.

"PROTECT remains confident in the overall quality of this lawsuit," Executive Director Peter Bauer said in the press release. "The denial of our discovery motion in March was a setback, as was the APA's partial denial of our FOIL (Freedom of Information Law) requests last summer. We will continue to pursue these items as the main suit moves towards conclusion."

A message to lead developer Michael Foxman wasn't immediately returned, and the Enterprise's attempts to get comments from ACR attorney Bob Sweeney were unsuccessful. A message asking the APA for comment was also not returned.